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18 June 2016

Note: The questions and answers might not have been rendered using those exact words. Hence, in many instances, the gist of the exchanges between Senators and witnesses has been provided as carefully as possible. Should there by any misrepresentations, they are my sole responsibility.

Preamble

12:11 pm: After waiting in a hallway for nearly three hours, we are inside a near empty meeting room inside the Dirksen Building waiting for the inevitable. The lobbyists for the art market are huddled in a corner, dressed in appropriately expensive outfits, mostly dapper men, not a single strand of hair out of place, caricatures of male fashion models.

Act One: The Testimonies

The hearing began at one in the afternoon.

Senator John Cornyn (R-Tex) declared that heirs should come forward to achieve just and fair solutions. The proposed legislation sets up a period of six years during which they must discover their objects and claim them. It eliminates laches and statutes of limitations. However, « claimants are given a chance but that chance should not last forever. »

No sooner than he entered the hearing room, Senator Charles Schumer (D-NY) announced that he was going to leave in five minutes because of a lunch. Before leaving, he announced that there is work to be done, reclaiming art that had been stolen, even though the statute of limitations has passed. Schumer asked Ronald Lauder about the actress, Helen Mirren, who had played the role of Maria Altmann in her historic bid for restitution of her family’s Klimt paintings held at the Belvedere in Vienna.

Schumer expressed his gratitude to the movie « Woman in Gold» which paved the way to give claimants their day in court. Morally it is the right thing to do. S. 2763 will be a drop of justice in an ocean of injustice. He also took the opportunity to take full credit for S. 2763 and asked that the bill be passed as soon as possible. Then he left the room.

Senator Ted Cruz (R-Tex), in his introductory remarks, evoked D-day, the liberation of Nazi camps, the discoveries of stolen treasures in Europe, « not just spoils of war, » but the fruit of Nazi policies stretching back to 1933. « The Nazi goal was to dehumanize the Jewish people, leading to the Final Solution… We are still trying to cope with the consequences of the Holocaust. Today it’s about looted art, the ‘greatest displacement of art in human history.’ Many works found their way into American museums, often by happenstance. It has been difficult for claimants to prove their losses, due to absence of documentation.

The HEAR Act (S. 2763) is intended to ease the burden on families by establishing a six year suspension of the statute of limitations, during which cases can be filed on the merits which will not be thwarted by technical legal defenses. Families are encouraged to come forward and make known their claims and steps taken to achieve fair and just solutions (Washington Principles), resolve claims expeditiously based on the June 2009 Terezin Declaration. Senator Cruz acknowledged that there were many issues « on which we disagreed. However bipartisan cooperation made the bill a reality. »

Senator Cornyn left the room.

Senator Richard Blumenthal (D-CT) declared that this hearing is a milestone to ensure that this Congress speaks on the side of justice. He discussed his family’s escape from Europe and the loss of life for those who remained behind. « Time is long past to return these ill-gotten gains of that unspeakable horror. » Echoing Cruz’s words, he mentioned that the destruction of documentation had aggravated the theft. Statutes of limitations should not be invoked to deny justice.

It is already starting to feel like theater.

Chairman Chuck Grassley (R-IA) thanked the witnesses for appearing. « We need to fulfill our commitment to return the artwork to its rightful owners. And when the senators are ready to place the bill on the agenda, we will put it on the agenda. » Strong words whose import we did not realize at the time because of Grassley’s close ties to the American museum lobby.

The witnesses were sworn in.

Ronald Lauder, representing the World Jewish Restitution Organization, indicated that he represented Jewish people everywhere. After the war, art theft was continued by governments, museums. People who should have known better participated in this. That’s what brings us together today. How do we render just and fair decisions for art works in dispute and still missing ? We’d like to see every piece of art returned to rightful owners. A confiscated work of art may have been purchased with good intentions, without knowing that it was stolen.

The United States committed itself to recover works of art that had been looted, by endorsing the Washington Principles and the Terezin Declaration.

According to Lauder, there are museums in the US which run the clock to allow the statute of limitations to kick in in order not to return the art. They feel no need to uphold the Washington Principles [of December 1998].

The HEAR Act provides that claims should not be denied because of the passage of time and especially because they would not have had knowledge. Once the claimants have knowledge, they should not wait and they should file their case within a six year period to be heard without technical defenses used against them.

Why should we care now ? We should care deeply. Denying the justice is wrong and perpetuates the crimes of the Nazis. Behind every stolen work of art, a murder was committed. If people are interested in justice, they should support this legislation.

Helen Mirren recounted Maria Altmann’s saga. As an actress, Mirren had to go on her own journey and put Altmann’s memories in her mind. She read a lot of research material, to render the absolute reality of those days when Altmann lost everything and had to flee Vienna. In her view, lack of transparency, lack of access to information and the lack of assurances that they could have their day in court discouraged the victims. « The right thing to do is to return the art to its rightful owner. The act of removing the art by the Nazis was unconscionable. »

In her words, "Restitution is more than reclaiming a good. It’s a moral imperative. Art restitution has very little to do with financial gain, it is about retaining their (the Jewish people’s)history, their culture, their memories and most importantly their families. Maria’s story is a story of noble justice, it deserves to be told by future generations."

And finally, Mirren hit it on the nose :

« Art is a reflection of memories. Dispossession loses memories. It’s like having no family. Lives of so many people could be rejuvenated. Greed, self-interest will always be with us. Justice is so much more difficult. We all dream of justice. We have the ability to make changes today. »

Monica Dugot, a senior executive at Christie’s auction house in New York took no position on the HEAR Act. However, she shared her personal experiences as a restitution advocate while at the Holocaust Claims Processing Office in New York and then as a senior executive at Christie’s overseeing restitution matters. She made a point of emphasizing that smaller looted pieces were recirculating and that was inevitable. And yet the emotional value of the art works is beyond estimates.

Thorough due diligence protects Christie’s reputation on the market. Its role is that of an intermediary or a broker, a neutral third party between current possessors who consign their objects for sale and those claiming the pieces as their stolen property. The choices are either restitution or a negotiated financial settlement which might lead to the sale of the piece.

« We vet all pre-1945 works that pass through our hands. » Although Christie’s resources are limited, it has handled at least two hundred claims. Ms. Dugot indicated that Christie’s preferred negotiated settlements.

Agnes Peresztegi, representing the Commission for Art Recovery, is committed to assist to the restitution of looted art. In her words, « expropriation is a form of genocide. Works of art removed during an act of genocide should be viewed as permanently tainted. »

The burden has been too often placed on the claimant to prove ownership. She made a point of emphasizing that the HEAR Act would not be retroactive.

It should not extinguish claims in States which are more sympathetic to claimants.

Simon Goodman, a relative of Friedrich Guttman whose vast collection of art works and objects of art was plundered during the German occupation of Holland and France, has spent twenty years « trying to recover Friedrich’s collection. » When his father died in 1994, Simon discovered the correspondence detailing the often-fruitless attempts to recover the family’s objects. The Dutch government wanted to be paid before returning any art work or it simply absorbed looted objects in Dutch state collections.

Simon’s quest began in 1995. In late 1995, a pastel by Degas was found in Chicago. The current possessor, Daniel Searle, claimed that the statute of limitations had run out. He had exercised no digilence at the time of purchase. In 2002, he found a Nazi inventory of each room in his parents’ house.

Act Two : The Questioning

Senator Cruz: Why are we still working on this ?

Ron Lauder : Many records were destroyed. Although families had no records, museums had records and they stonewalled. Lauder wonders whether the hearing would have taken place had the movie [The Woman in Gold] not been made.

Senator Cruz: Has the US lived up to its commitments to resolve claims expeditiously ?

Ron Lauder : Yes and no. Museums tend to stop restitution if the piece being claimed is one of their best pieces. The US has the will to live up to its obligations and the HEAR Act allows the US to do so.

Senator Blumenthal: He credits the movie "The Woman in Gold" to provide support for this cause.

The HEAR Act is an exceedingly modest proposal for thousands of people who have been waiting to present their case. I felt anger and outrage at the museums and other reputable isntitutions which have invoked these technical obstacles. I won’t name them. They have been complicit in this injustice. Indiretly aided and abetted the thuggery of the Nazis. Made a pretense of following the rules of morality. Do you think we can enlist museums to be on the right side of justice ?

Ron Lauder : yes, you can. No museum wants to go on hanging on to Nazi-looted art. If we can, we win the battle. Too often, these museums have made it so expensive for claimants to do the work. We’ve had dozens of claimants complaining that they were making it very costly for them to recover their objets. This HEAR Act levels the playing field.

Agnes Peresztegi: Museums take the claims to the legal department and their main duty is to preserve their collection. They feel hesitant to even review the claim. If the HEAR Act could remove this obstacle, museums would be more encouraged to resolve the claims.

Simon Goodman : We acted as soon as we could but gathering evidence was the main uphill battle. Most of it became accessible at the end of the 20th century. It’s a point of honor for me to resolve what is outstanding.

Helen Mirren : As far as I understand, Maria Altmann realized after reading some press articles that something was possible to recover. It took a decade. Very long and difficult battle. She had the advantage of a young lawyer [E. Randol Schoenberg] who came on board. Even if she had wanted to, it would have been difficult. We owe Maria Almann a great deal.

Ron Lauder : 12 years and 4 million dollars of travel and time.

Senator Lee asks a question about laches.

Agnes Peresztegi : When Holocaust survivors came to the US, they were not ordinary citizens. It would be unjust to impose a different level of due diligence on Holocaust survivors.

Senator Lee : laches is an equitable doctrine. The application would be inequitable ?

Agnes Peresztegui : Yes. Theft is an issue of state law. Not federal law.

Senator Lee : Why is this an appropriate use of Federal law ?

Agnes Peresztegui : California tried to address this issue and enacted a state law which addressed Holocaust claims, which was struck down by the 9th circuit, ruling that it could only be addressed by Federal law. The argument was grounded on foreign policy of the US since 1943.

Senator Lee : Is it impossible for any one state to recognize this rule without engaging in foreign policy ?

Agnes Peresztegi: Yes. …The US has a consistent policy regarding the restitution of Nazi looted art.

Senator Lee : this law would not preclude us of doing the same for victims of other genocides ?

Agnes Peresztegi: No, it would not.

Senator Cruz has left the room.

Senator Coombs: how would the HEAR Act support your family if it had been passed when you had filed your claims ?

Simon Goodman : We won the first motion to dismiss. But the family felt that we should settle out of court because we did not know what the outcome of litigation would be. We were on strong moral ground and on weak legal ground. …This bill would be a huge help and establishes a moral record.

Senator Coombs: what info would be different under the HEAR Act ?

Agnes Peresztegi: The HEAR Act will bring certainty. It makes clear where the law stands.

Senator Coombs: are there other ways of delays ?

Monica Dugot: The market needs to convey good title and there should not be any taint on the object. Without making any comments on the bill, the template in place at Christie’s is to look at the facts, case by case.

Senator Coombs: What about ISIS looting cultural artifacts ? What impact does this law have on the appreciation of cultural treasures worldwide ?

Helen Mirren : This is happening to people as we speak. Their lives are taken as well as their history. What affected me the most is the idea of losing all trace of your existence on this planet, even if you survived, nothing, no one to talk to, no pictures, the disappearance of simple human things, this is why this has nothing to do with money, reclaiming one’s place in history.

Senator Tills: How many objects are outstanding ?

Ron Lauder : 2-300,000 major works of art are still outstanding. The lesser ones, we will never know.

Senator Tills : How many objects have you recovered ? and prospects to identify the others ?

Simon Goodman : There is a lot of searching left to do. One important painting entered the NY market in 1955. I have recovered and/or received settlements on 20 ptgs. Received 200 antiques. And there was a recent settlement on two golden clocks with Baden-Wurttemberg in Germany.

Senator Tills : What does a settlement look like ?

Simon Goodman : A settlement is for 40-50% of the value. Weigh that against the cost of going to court. For a painting in Switzerland, we have not a leg to stand on. The consignor is willing to provide 50% of the value.

Senator Tills: What is the Difference between legal systems in the US and Europe.

Agnes Peresztegi: After statute of limitations runs out, title is transferred to the current possessor. In the US, title does not pass. European nations set up standing committees because they could not change the laws. In the US, most of the museums are privately-owned. In Europe, they are publicly-owned. Ministries of culture decide on how museums behave. The US does not have such a government body. Hence you need to change the law, and you can.

Senator Klobuchar (D-MN): She invoked the case of a Leger painting at the Minneapolist Institute of Arts. It took 10years to do the research. Can one reduce that time ?

Monica Dugot : Monica would not comment on the law and asked « Aggie » to intercede.

Agnes Peresztegi: in those days, there were hopes that one central database would answer anyone’s question. Today, there are more digitized data available.

Senator Klobuchar: has international cooperation improved ?

Ron Lauder : Swiss stonewalled. Regarding the Leger, people knew it was stolen. Knowledge is one thing, acting on it is another.

Senator Klobuchar: I am impressed you knew about the painting

Ron Lauder : I am a collector.

Senator Klobuchar: Really ? Just joking.

Helen Mirren : I am here because—supposing someone came to my door, walked into my house and took everything that I owned, forced me to sign a piece of paper handing it over. It was wrong then and it is today. I don’t see any difference. I feel very strongly about it.

Senator Hatch : USHMM’s website to reflect on the lessons of the Holocaust. The HEAR act is part of that legacy. The job is still not over.

Ron Lauder : A major part of the Nazi regime’s mission was to destroy/confiscate art, use the art to make a new Museum in Linz. Art was a critical part of the program.

Senator Franken: He makes reference to the Prague conference of June 2009. What other measures should be passed to ensure that the US facilitate the return of looted art to rightful owners?

Agnes Peresztegi: We need more info about what museums hold. Museums only display 1/3 of their collections. Museums in the UK undertook to digitize all of their paintings and sculptures. You can publish all the objects in a museum. If there is suspicion in the UK, one can consult the images. Why shouldn’t we know what these museums hold ? There are many creative ways by which to move forward.

Senator Franken : If there were digitization of this info, it would be useful. Christie’s returned objects to many different claimants, how have other parties been involved in misapproprations ?

Monica Dugot : We look at provenance for everything that comes in. A lot of the work that has not been returned is in private hands. We emphasize that every object has clear provenance and if there are questions, we have to look into the history of ownership. It’s only been 10-15 years that provenance has been highlighted. Published sources might be erroneous, so we have to look at everything. The info out there is voluminous and not centralized. We work on deadline which is a problem for us. We have to do thorough provenance research in a matter of weeks. Or a month.

Simon Goodman : MFA&A [Monuments Fine Arts and Archives] could not deal with individual claimants. They returned what they had found to the countries where the objects had been stolen.

At the close of the hearing, Senator Cruz indicated that Chairman Grassley offered to expedite the legislation through the committee. He hoped to see some justice after 7 decades. The record will be kept open for 5 business days until June 14, 2016.

15 June 2016

Note: The title was inspired by a close friend who is intimately involved in art restitution matters.

The authors of Senate Bill 2763, the “Holocaust Expropriated Art Recovery Act” (HEAR Act), have as a major sponsor Republican Senator and former presidential candidate Ted Cruz. Another Republican co-sponsor is Senator Cornyn. Neither of them has been known to utter a word or express a single public thought about Holocaust claimants and/or about Nazi looted art. Democratic Senator Charles Schumer of New York, who is no friend of art restitution advocates, is a co-sponsor of S.2763 with Senator Blumenthal from Connecticut.

On the afternoon of Tuesday, June 7, 2016, the Senate Judiciary Committee held a public hearing regarding Senate Bill 2763. The witnesses included Ron Lauder speaking on behalf of the World Jewish Restitution Organization (WJRO), Monica Dugot of Christie’s, Agnes Peresztegi of the Commission for Art Recovery, Dame Helen Mirren, actress noted for her role as Maria Altmann in “The Woman in Gold”, and Simon Goodman, one of the heirs to the collection and property of the late Friedrich Gutmann.

Let’s deconstruct the title of the proposed bill:

Expropriated Art: is “expropriated” a legal term or just an evocative word to denote forcible removal without the owner’s consent? It might have been selected so that an acronym could be used to publicize the bill—in this case, HEAR. What if we had used displaced or misappropriated as substitutes for “expropriated”? Then we would get HDAR or HMAR. Not very elegant.

Does this proposed legislation cover all acts of illegal misappropriation of Jewish-owned cultural assets between 1933 and 1945? Or does the proposed legislation only cover those instances where a “public agency”, writ large, orders the “taking” of private property from Jews? Depending on how you answer these questions, the field of objects covered by this proposed legislation could change rapidly.

Recovery: it’s a word like any other, but does it actually mean “restitution” or simply the act of “recovering”? Merriam-Webster defines “recovery” as “the return of something that has been lost, stolen, etc.” What would have occurred if the Act had been called the “Holocaust Expropriated Art Restitution Act”? It would have been far more specific and more claimant-friendly. Then, the framers of the act could not be accused of playing footsy with the art market by keeping the wording ambiguous, because “recovery” is an ambiguous term, much as recovering from addiction leaves room for a relapse. Why ambiguous? Well, US troops “recovered” looted art throughout "liberated" Germany and Austria. Did it mean that it was “restituted”? No, it simply meant that it had to be shipped to countries where local officials would then “restitute” the objects to their rightful owners, or not.

Why the ambiguity? Is S. 2763 really a hat tip to the art market, a flirty wink to indicate that, no worries, your interests will be taken into account when this law finally passes? In other words, “recovery” might also mean “just and fair” which usually means “financial settlement” where the seller or current possessor of the claimed looted item gets to hang on to the prized ownership title to the looted object.

“Recovery” is another way of saying that the art market continues to hold tremendous sway on how restitution works for Holocaust-era claimants.

At the end of the day, so the expression goes, it is always a business decision how a looted object gets "returned” and “recovered.”

Are claimants’ rights genuinely protected by S. 2763? Or is this bill a subversive sop to the art market and a gift to the Association of Art Museum Directors (AAMD) and to the American Alliance of Museums (AAM)? These two groups have fought for years to put an end to the claims process, callously indifferent and disdainful about how cultural objects are stolen, misappropriated, expropriated, displaced, whatever the word is to connote illegality.

As currently drafted, S. 2763 might be nothing more than a final attempt to address art restitution in the United States, offering the art market the equivalent of a social peace during a six-year period of claims hopefully unimpeded by statutes of limitations and laches (assuming that the final version of S 2763 keeps out laches, no guarantees given!). Claimants would presumably get a « fair day in court » where their claims may be assessed solely on their merits, again within a six year framework or less, depending on when the claimed item had been located and identified and the evidence garnered to back the claim.

S. 2763 is looking more and more like a thinly disguised message to claimants,.a last opportunity to file for restitution assuming that they know where their object is and they have the proper documentation to support their claim. If not, how will they obtain the evidence in the time allotted to them? How will claimants afford a court action against a current possessor especially if it is a museum or a billionaire collector with access to a well-supplied war chest ?

S. 2763 stacks the cards against claimants, however which way you look at it. Even if they do manage to garner the documentation, claimants will not be able to afford the hefty litigation fees associated with a proceeding to obtain restitution.

It is not possible to endorse S.2763 if a mechanism is not explicitly created which ensures that claimants will be supported in their attempt to recover their lost property. The Federal government should subsidize this commitment for at least ten years to ensure that claims are properly addressed and have a fair chance of being heard, by minimizing research and legal costs to claimants.

S. 2763 favors wealthy claimants with access to significant means to support research into their claims and legal action to recover identified objects which sit either in public or private collections. It is clearly not designed to help the vast majority of claimants, who lost cultural assets that are not museum-worthy. It provides succor to the very few, those who are familiar with the claims process and are able to demand the return of high-end items which their lawyers are willing to recover for them at rates the average claimant cannot possibly afford.

The claims process has always been skewed towards those who have lost cultural assets considered of great value in today’s market and towards whom gravitate most lawyers as well as market players.

14 June 2016

The US Senate and its friends in the art market and in some well-established organizations which purport to advocate on behalf of victims of cultural plunder want to do away once and for all with the restitution process as we know it today, however imperfect it may be, by replacing it with a brief period during which a claimant can file for restitution with the illusion that there will be no legal obstacles put in her way and, when this "sunset" period is over, the boom comes down and there might never be another opportunity to obtain redress for a wrong tied to genocide.

Since 2012, the American museum community and their friends in the art market and in Congress have ceaselessly attempted to do away with all legal protections afforded to victims of cultural plunder by the American legal system, minus that problem involving legal technical defenses. In short, if looted objects are found in the United States, those who argue that they are the rightful owners can present their case before an American court and argue for the restitution of what they view is their property which they lost without their consent.

We are now in 2016 and the US Senate is getting ready once again to ramrod claimants from their right to seek restitution, this time by making it look as if the proposed legislation, S.2763, is really for them. But it is not. Rather than go into tedious explanations, it's best to allow Pierre Ciric, a restitution lawyer who is also counsel to the Holocaust Art Restitution Project, to explain the problem and its urgency. The most egregious part of this exercise is that those who uphold the rights of claimants including established American Jewish organizations, members of the New York bar, Senators, auction house executives have jeopardized their very right to obtain restitution by signifying their support to this proposed legislation.

Obviously, the world would be a simpler place if there were no claims for looted art. But then no one asked the Nazis to come to power in Germany in 1933 and sow racial and political hatred across Europe, robbing, pillaging, enslaving, and massacring millions, including six million Jews. No one asked the art market to act like imbeciles and pretend that History did not interfere with the ownership of countless objects which appeared as if by miracle on the American art market and acquired them for themselves or for museums.

Quite frankly, it is astonishing that we are here today, educated as we are, and still wondering why genocide is not sufficient grounds for ridding American museums, galleries and auction houses of looted art and returning it to the rightful owners. Do we think that the US Senate, in all its wisdom, wishes to put an end to justice, when there is no end to justice for crimes against humanity? True enough, objects are not people, but objects belonged to people and helped define their lives, their culture, their identity. Enough.

The Ciric Law Firm, PLLC represents a number of U.S.-based and European-based clients in connection with the recovery of cultural or religious artifact restitution claims, both in the United States and abroad. Some of these clients have hired us for the purpose of representing them in restitution efforts of artworks looted during the Holocaust and others, including Native American tribes which hired us for the purpose of representing them in restitution efforts of artworks looted in the United States after 1945.

We also represented Léone Meyer in several legal actions (Meyer v. Bd. of Regents of the Univ. of Oklahoma, No. 13-CIV-3128 (S.D.N.Y. May 9, 2013); Meyer v. Bd. of Regents of the Univ. of Oklahoma, No. 5:15-cv-00403-HE (W.D. Okla. Apr. 15, 2015)) involving the restitution of a painting by Camille Pissarro titled “La Bergère Rentrant des Moutons” (1886), which has been on permanent display at the Fred Jones Jr. Museum of Art at the University of Oklahoma. As you may know, in February 2016, a settlement was reached between the parties involving the restitution of the painting to my client, as well as rotating public display between the Fred Jones Jr. Museum of Art and an art institution located in France.

In the absence of this settlement, the Holocaust Expropriated Art Recovery Act of 2016, S. 2763, 114th Cong. (2016) (the “HEAR Act”) would have had a significant impact on the interpretation of the relevant statute of limitation rule in the 10th Circuit, which controls the Western District of Oklahoma, where Meyer v. Bd. of Regents of the Univ. of Oklahoma was filed.

Furthermore, the Ciric Law Firm, PLLC represents the Holocaust Art Restitution Project (“HARP”). HARP is a not-for-profit organization that disseminates information to the public and to claimants about cultural property stolen, confiscated, and misappropriated between 1933 and 1945 during the Nazi-era. HARP’s Chairman is Professor Ori Z. Soltes, who teaches at Georgetown University across a range of disciplines, from theology and art history to philosophy and political history. He is the former Director of the B’nai B’rith Klutznick National Jewish Museum in Washington, DC, where he curated exhibitions on a variety of subjects such as archaeology, ethnography, and contemporary art. Professor Soltes has taught, lectured, and curated exhibitions across the U.S. and internationally. He is the author of over 230 articles, exhibition catalogues, essays, and books on a range of topics. Recent books include: The Ashen Rainbow: The Arts and the Holocaust; Our Sacred Signs: How Jewish, Christian and Muslim Art Draw from the Same Source; Searching for Oneness: Mysticism in Judaism, Christianity and Islam; and Untangling the Web: A Thinking Person’s Guide to Why the Middle East is a Mess and Always Has Been. Professor Soltes was also involved in providing the historical research and background information in regard to Egon Schiele’s “Portrait of Wally” case, as well as the restitution of an Odalisque painting by Henri Matisse to the Rosenberg family.

We want to congratulate you for a very successful hearing which took place on June 7, 2016, titled ‘Reuniting Victims with Their Lost Heritage,’ which focused on the HEAR Act, which we attended.

This bill is not Congress’ first involvement with the Nazi-looted art issue. During the 1990s, the Executive and Legislative Branches of the U.S. Government were concerned with the issue of Nazi- looted artworks finding their way into American Museums. First, the Holocaust Victims Redress Act expressed the "sense of the Congress" that "all governments should undertake good faith efforts to facilitate the return" of Nazi-confiscated property. Pub.L. No. 105-158, § 202, 112 Stat. 15, 17-18 (1998). In addition, during the Clinton Administration, Ambassador Stuart Eizenstat, who was then Under Secretary of State for Economic, Business, and Agricultural Affairs, led the way in urging governments around the world to seek ways to effectuate the policy of identifying art looted by the Nazis and returning it to their rightful owners. In December 1998, following a series of congressional hearings, the U.S. Government had convened a conference of government officials, art experts, museum officials and many other interested parties from around the world in Washington, D.C. to consider and debate the many issues raised by the continuing discovery of Nazi-looted assets, including artworks. The Conference promulgated eleven non-binding principles concerning Nazi-confiscated art, which were adopted by 44 nations. One principle states that pre-War owners and their heirs should be encouraged to come forward to make known their claims to art that was confiscated by the Nazis and not subsequently restituted. U.S. Dep't of State, the Washington Conference on Holocaust Era Assets, Washington Conference Principles on Nazi-Confiscated Art (December 3, 1998) (available at http://www.state.gov/www/regions/eur/holocaust/heacappen.pdf).

At the same time, the American Association of Museum Directors (“AAMD”) task force drafted its guidelines in the Report of the AAMD Task Force on the Spoliation of Art during the Nazi/World War II Era (1933-1945). In addition, the American Alliance of Museums (formerly American Association of Museums, or “AAM”) formed a working group to begin drafting their guidelines, AAM Guidelines concerning the Unlawful Appropriation of Objects during the Nazi Era, issued in 1999.These AAM guidelines specifically provide that:

“Standard research on objects being considered for acquisition should include a request that the sellers, donors or estate executors offering an object provide as much provenance information as they have available, with particular regard to the Nazi era. […]

Where the Nazi-era provenance is incomplete or uncertain for a proposed acquisition, the museum should consider what additional research would be prudent or necessary to resolve the Nazi-era provenance status of the object before acquiring it.

If credible evidence of unlawful appropriation without subsequent restitution is discovered, the museum should notify the donor, seller or estate executor of the nature of the evidence and should not proceed with acquisition of the object until taking further action to resolve these issues.”

Unfortunately, the June 7th hearings have shown that actions by American museums have been more often than not detrimental to claimants, which is why your intervention continues to be needed.

The implications of the HEAR Act are significant to our clients and that is why we request several important changes to S. 2763 from your Subcommittee. In accordance with the instructions given by the Subcommittee’s Chairman, Senator Cruz, to submit comments before the end of the day, June, 14, 2016, we submit to the Subcommittee the drafting changes to the HEAR Act that our clients have requested. These changes are all included in Exhibit A, which shows the requested changes in redline format.

These requests for changes assume that no language related to the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, H.R. 889, 114th Cong. (2015-2016), described in paragraph 6 of this letter, is considered, either within the HEAR Act, or through a separate bill introduced in the senate during the 114th Congress as some form of quid pro quo in exchange for the passage of the HEAR Act.

1. Definition of the term “artwork or other cultural property”

The current version of the term “artwork or other cultural property” is too narrow and excludes many categories which have been extensively defined and included in other statutes or treaties endorsed by the United States. Therefore, the requested change is the definition of cultural property as articulated in the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property, to which the United States is a signatory.

Similarly, the definition of “persecution during the Nazi era” is modified to clarify that the persecution would include activities conducted by Nazi Germany or governments that were allies of Nazi Germany, as well as from countries occupied, annexed or controlled by non-Nazi Axis powers, i.e. Japan and Italy.

2. Sunset provision

A number of archives in Europe, which are usually under governmental control and subject to specific declassification statutes, and that contain critical information about assets looted during World War II, will not be available for public access and research beyond the proposed sunset date of December 31, 2026. Such examples include restrictive rules regarding declassification of archives in France. In France, declassification rules range anywhere from 25 years to 100 years for archives that are relevant to acts if cultural plunder during the period of German occupation of France during World War II.

Documents relevant to national defense secrets involving the disclosure of identifiable individuals are subject to a 100-year disclosure rule. See Loi 2008-696 du 15 juillet 2008 relative aux archives [Law No. 2008-696 of July 15, 2008 regarding archives]. This rule applies to archives related to Vichy Regime leaders who were connected to art-looting activities in France either with or in competition with the Nazis. For instance, archives related to Vichy Prime Minister Laval, whose cabinet bears much of the responsibility for the plunder of Jewish-owned assets including art works, will not become publicly available until 2045 at the earliest.

Furthermore, notarial archives that encompass assets included in estates controlled by notaries (“notaires”) between 1939 and 1945 are to be made public only 75 years after the opening of the estate. See Code du patrimoine [Code of national patrimony], Art. L213-2

Thus, most if not all Jewish estates subject to confiscation and that included looted art will not become available until July 31, 2020 at the earliest.

Researchers will need a period of five to ten years to research those archives, which means that a reasonable sunset provision must include the disclosure date of those archives plus a ten-year research period. Therefore, we request that the sunset provision coincide with the longest period of disclosure of these archives, augmented by a ten year research period, to allow for the proper records regarding Nazi looted art activities to become available for research and to provide the basis for validly supported claims. Hence, the new requested sunset date indicated in the redline version is December 31, 2045 plus ten years, i.e., December 31, 2055.

New York claimants who bring claims involving looted or stolen artworks are subject to a statute of limitation rule determined by common law. The court in Solomon R. Guggenheim Museum v. Lubell, 77 N.Y.2d 311 (1991), applied this rule and discussed its importance in claims relating to artwork and New York’s strong public policy interest in ensuring that New York does not became a haven for trafficking in stolen cultural property. A similar policy was described in DeWeerth v. Baldinger, 836 F. 2d 103 (2nd Cir. 1987).

In New York, the statute of limitations for conversion is three years, and the statute of limitations for a claim seeking replevin (the recovery of the specific property, rather than money damages for conversion) is keyed to the conversion’s time limit. In Guggenheim, the Court of Appeals held that, in a claim seeking to recover misappropriated property, the statute of limitations for conversion and replevin only starts to run when the owner makes a demand which is refused, unless a demand would have been futile. The demand and refusal rule had been set forth in earlier New York cases, but Guggenheim reiterated it along with a discussion of its importance in claims relating to artwork in view of New York’s strong public policy interest in ensuring that New York does not become a haven for trafficking in stolen cultural property.

Claimants in “demand and refusal” jurisdictions are going to lose their ability to bring cases based on the statute of limitation grounds if there is a six-years-from-discovery rule, instead of three-years-from-demand-and-refusal rule.

This change will have a “real-life” impact on several of our clients. For instance, we currently represent a European client who has claims for objects transported through New York against a Museum institution in the United States, as well as a client who has potential claims for an object located in a major New York art museum. Both of these clients’ claims would be directly threatened under the new statute of limitations rule defined in the HEAR Act. However, both of these clients would be able to bring their claims under the current Guggenheim rule. For this reason, we request that the bill include language excluding any forum where the statute of limitation rule would be controlled by Solomon R. Guggenheim Museum v. Lubell, 77 N.Y.2d 311 (1991) or by DeWeerth v. Baldinger, 836 F. 2d 103 (2nd Cir. 1987).

We believe that this drafting is clearer than language mentioning “any applicable State statute of limitations […] more favorable to the claimant,” as such an approach is likely to introduce uncertainty for a judge as to which criteria to adopt to consider a more favorable statute of limitations.

4. The HEAR Act’s sunset provision may be used by defendants to eliminate any claim in New York after 2026

As written, the HEAR Act expires on December 31, 2026. If a claimant files a claim after this date in New York or in another jurisdiction that relies on the statute of limitation rule defined in New York, it is almost certain that defendants will challenge this claim as negatively affected by the legislative history of the HEAR Act, which already includes the statement made by Senator Cornyn during the hearings that “the ability to find art is better now and claimants should be given a chance, but that chance should not last forever.”

Therefore, we request that Section 5 of the bill restate that, upon the expiration of this Act on December 31, 2055, all statute of limitation rules in existence prior to the enactment of this Act shall remain in effect, and that, after December 31, 2055, a claimant not be barred from bringing a claim or cause of action under the statute of limitation rules in existence prior to the enactment of this Act.

If this is what the Subcommittee meant, but did not confirm during the hearings, then I am sure that the Subcommittee members will not mind reiterating that position in the proposed bill.

5. Laches defense

During the hearings, all committee members confirmed that the goal of the HEAR Act was to ensure that plaintiffs would be able to present their case on the merits rather than having to deflect so-called technical defenses. Defendants in Nazi-looted art cases routinely raise the laches defense, based on the notions that a plaintiff’s claim may be barred when “(1) there has been an unreasonable delay in asserting the claim, and (2) the defendant was materially prejudiced by that delay.” See Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997).

As most witnesses testified during the hearings, it is ludicrous to argue that plaintiffs in Nazi-looted art cases routinely entertain “unreasonable delays” in asserting their claims, since archives are by design frequently unavailable, and have only been recently made available through digitization efforts. Furthermore, any museum can argue that it was prejudiced by the delay in asserting a claim, since it risks losing significant works in its collection, even though a museum defendant may never have complied with the codes of ethics issued by AAM or by AAMD, whereby member museums are required to perform proper due diligence and provenance research.

Since the laches defense can be applied on a discretionary basis by a judge regardless of the statute of limitations defense, and in fact defeat the congressional intent to entertain claims on the merits by simply applying the laches defense to any case, it remains critical to achieve the legislative intent of the bill to clearly eliminate the laches defense. Therefore, we request that the HEAR Act specifically bar defendants from invoking the laches defense until the sunset provision kicks in.

We understand that several senators, including Senator Hatch, may intend to include the language of the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, S. 2212/H.R. 4086, 112th Cong. (2012), H.R. 4292, 113th Cong. (2013), H.R. 889, 114th Cong. (2015-2016) into the HEAR Act or attempt to pass a Senate version of the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, H.R. 889, 114th Cong. (2015-2016) before the end of the 114th Congress. In the event of such a development, this firm and all of our clients shall withdraw any support for the HEAR Act, but will also publicly oppose the resulting bill.

Significant and widespread opposition arose after the introduction of each iteration of the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act, S. 2212/H.R. 4086, 112th Cong. (2012), H.R. 4292, 113th Cong. (2013), H.R. 889, 114th Cong. (2015-2016). For your information, we are attaching in Exhibit B the main objections to this bill when it was presented before the House of Representatives pertaining to H.R. 4292.

Since the repeated defeats of S. 2212/H.R. 4086 and H.R. 4292, two new developments will render the passage of a senate version of H.R. 889 significantly problematic, in fact absurd, especially if its passage in Congress were to be tied directly or indirectly to the passage of the HEAR Act.

- First, under Protect and Preserve International Cultural Property Act, Pub. L. No. 114-151 (H.R.1493, 114th Cong. (2015)(enacted)), the executive branch has the power to apply “import restrictions with respect to any archaeological or ethnological material of Syria.” Imagine the following hypothesis: an archeological object illicitly extracted from Syria and sold to an American collector is blocked at the border under Pub. L. No. 114-151. On the same day, an archeological object illicitly extracted from Syria UNDER THE SAME CIRCUMSTANCES, but sold instead to a European collector who then donates it to a European Museum organizing a temporary exhibit in the U.S., would not only be protected from any seizure, but could not be the subject of any claim in the U.S. if H.R. 889 becomes law.

- Second, this firm represents the Hopi tribe in its quest to seek the restitution of its religious artifacts currently being sold at auction in France. As you also know, these religious artifacts cannot be extracted from tribal land, exchanged, sold or otherwise transferred without the consent of the tribes. See Antiquities Act of 1906, 16 U.S.C. §§ 431-433 (2014); Archaeological Resources Protection Act of 1979, 16 U.S.C. §§ 470aa-470cc (2014); Native American Graves Protection and Repatriation Act of 1990, 25 U.S.C. §§ 3001-3002 (2014); Arizona Antiquities Act of 1960, Ariz. Rev. Stat. Ann. § 41-841-41-844 (2014). Imagine the following hypothesis: a tribal religious object is illicitly extracted from tribal land, sold in France to a private collector who sought to import it back to the U.S. That individual would be subject to prosecution under the provisions indicated above. See also United States v. Corrow, 119 F.3d 796, 804 (10th Cir. 1997); United States v. Tidwell, 191 F.3d 976, 981 (9th Cir.1999). The same day, a tribal religious object--illicitly extracted from tribal land UNDER THE SAME CIRCUMSTANCES, but sold instead to a French collector who then donated it to a European Museum organizing a temporary exhibit in the U.S.--would be not only protected from any seizure, but could not be the subject of any claim in the U.S. if H.R. 889 were to become law. The Hopi tribe would have to face the humiliation of being barred from making any claim while their religious object was ON AMERICAN SOIL.

It goes without saying that, should the HEAR Act, including or incorporating any language related to H.R. 889, make any progress in Congress, or should any bill similar to H.R. 889 be considered during the 114th Congress as a result of any direct or indirect quid pro quo between H.R. 889 and S. 2673, it will constitute a material fact which may impact the support or position of any witness who testified during the June 7th hearings.

Furthermore, such a material development will encounter, not only the same opposition from groups that came forward in 2012, but will probably garner significant additional opposition from other groups such as archeologists who supported H.R.1493, as well as from indigenous groups and American tribes, who are significantly frustrated by the lack of response from the U.S. Department of the Interior and the U.S. Department of Justice regarding the French auction sales of their tribal objects.

We reiterate our strong objection to H.R. 889-related language, either through the HEAR Act or through a separate bill introduced in the senate during the 114th Congress.

If you have any questions please let me know. Thank you in advance for your support.

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About Me

HARP was co-founded in September 1997 in Washington, DC, by Ori Z. Soltes, Willi Korte, and Marc Masurovsky to document cultural property losses suffered by Jewish individuals, families, and institutions between 1933 and 1945 at the hands of the National Socialists and their Fascist allies across continental Europe; to conduct historical research into the wartime and postwar fate of stolen, confiscated, misappropriated cultural property.

The Holocaust Art Restitution Project (HARP) welcomes commentary and insight from all visitors in its multiple virtual forums as long as it maintains focus, is cordial and professional. Likewise, personal questions regarding issues about cultural property destroyed, lost, repatriated, and/or restituted from 1933 to the present due to the National Socialists and their Fascist allies across continental Europe will be answered accordingly.